Goldsworthy v Radio 2UE Sydney Pty Limited

Supreme Court of NSW|1999-03-22|Before: Dunford J

New South Wales Supreme Court CITATION : Goldsworthy v Radio 2UE Sydney Pty Limited [1999] NSWSC 547 CURRENT JURISDICTION : Common Law Division FILE NUMBER(S) : 20133/95 HEARING DATE(S) : 22 March 1999 - 26 March 1999 JUDGMENT DATE : 9 June 1999

Allan John Goldsworthy (Plaintiff) PARTIES : Radio 2UE Sydney Pty Limited (ACN 000 796 887) (First Defendant) Ray Hadley (Second Defendant) JUDGMENT OF : Dunford J

COUNSEL : Mr SM Littlemore QC / Mr T Molomby (Plaintiff) Mr SD Rares SC / Mr KP Smark (Defendants) SOLICITORS : Gells Solicitors (Plaintiff) Bush Burke & Company Solicitors (Defendants) CATCHWORDS : DEFAMATION - Defence of Comment - Damages. ACTS CITED : Defamation Act 1974 Justices Act 1902 NSW Aboriginal Land Council v Perkins (1998) 45 NSWLR 340 Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728 PC Radio 2UE Pty Ltd v Parker (1992) 29 NSWLR 448 David Syme & Co Ltd v Lloyd [1984] 3 NSWLR 346 CASES CITED : O'Shaughnessy v Mirror Newspapers Ltd (1970) 125 CLR 166 Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 Cawley v Australian Consolidated Press [1981] 1 NSWLR 225 Silkin v Beaverbrook Newspapers Ltd [1958] 1 WLR 743 Jones v Dunkel (1959) 101 CLR 298 Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 DECISION : See para 45.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST DUNFORD J 9 JUNE 1999 20133/95 Allan John GOLDSWORTHY v RADIO 2UE SYDNEY PTY LIMITED & ANOR JUDGMENT 1 DUNFORD J. On 24 April 1994, Mrs Toula Soravia was shot outside a bank in Summer Hill whilst seated in the front seat of her motor car next to her son, Alexander. David John Zammit was charged with her murder and his committal hearing set down for 16 January 1995 at Central Local Court. The plaintiff, who is and was a barrister-at-law, was instructed to appear at the committal hearing on behalf of David John Zammit and on that day made submissions to the magistrate that Alexander Soravia should not be excused from attending the committal for cross-examination under s 48EA of the Justices Act 1902 as it then stood, because he was not a "victim" of the murder within the terms of the section. 2 The following day, 17 January 1995, the second defendant, an employee of the first defendant, broadcast over radio station 2UE and its relay stations the matter set out in Annexure A to the Statement of Claim. 3 The plaintiff through his solicitor sought a withdrawal and apology which were not forthcoming, whereupon the plaintiff sued the defendant alleging the following defamatory imputations: (a) that he behaved shamefully in seeking to cross-examine a young man who had seen his mother shot dead in front of him; (b) that decent lawyers would deplore his conduct at the committal hearing of David John Zammitt for the murder of Toula Soravia; (c) that he is unfit to be a lawyer; (d) that he is a heartless person; and (e) that he is not a gentleman. 4 At the beginning of the trial I ruled that the matter was not capable of bearing imputation (b): [1999] NSWSC 291. 5 In accordance with the Defamation Act 1974, (the Act) s 7A(3) a jury was thereupon empanelled to determine whether the matter complained of carried the remaining four imputations alleged, and if so, whether they were defamatory of the plaintiff. 6 The jury found that the matter carried two of the four imputations namely: (a) That the plaintiff behaved shamefully in seeking to cross-examine a young man who had seen his mother shot dead in front of him, and (d) That the plaintiff is a heartless person, and that such imputations were defamatory of the plaintiff. 7 I thereupon directed the entry of judgment for the defendants in respect of the imputations (b) (c) and (e). The only defence ultimately relied on by the defendants was comment (ss 32 and 33 of the Act). 8 The plaintiff who is thirty-nine years old, was educated in Sydney and joined the NSW Police Service in 1979. From 1981 to 1986 he worked as a police prosecutor whilst studying for the Solicitors' Admission Board exams which he completed in 1985, the same year he was admitted to the Bar and he commenced practice in 1986. He specialised in criminal cases but did other work as well, and was briefed mainly by suburban and country firms. He was at the time of the broadcast married with two children, but he separated from his wife finally about the end of 1995 and has subsequently been divorced, this following approximately four prior separations. He has been involved in soccer virtually all his life at a high semi-professional level and in 1994 and 1995 he was captain of the Pittwater Club team and again in 1988. He has a wide circle of friends through soccer, his police associates, barristers' chambers and neighbours in the areas where he has lived. 9 He knew first of the broadcast the following evening during soccer training at Mona Vale when one of the other players, a Mr Mahoney, referred to it and said he had been mentioned in the broadcast and asked whether he had got himself into trouble in a court case for trying to cross-examine a witness when he should not have. The plaintiff said that on hearing this remark he felt as though he had been kicked in the stomach hard, he was acutely embarrassed and felt unable to help himself, he was concerned to know exactly what had been said, he could not understand why he had been criticised in this way, or at all. When told the broadcaster was the second defendant he realised the matter had been spoken on a morning radio program on the first defendant's station, which he believed had a massive coverage in New South Wales and other areas. He said another player, a Mr Hennessey, approached him that same evening and said that he had heard criticism of him on the radio. With two people having mentioned it to him, he was upset and angry and he instructed his solicitor to apply for a tape or transcript of the broadcast. 10 Two nights later he received a telephone call from a Mr Silvester who had been a friend since they were both in fourth grade at primary school, and who was at that time a serving member of the Police Service with the rank of Sergeant, who asked him, "Do you know you got a bagging from Ray Hadley, have you done something wrong?" He told him he had not, whereupon Mr Silvester asked him, "What's it all about?" He explained to him what had happened and that he had not done anything wrong whereupon Mr Silvester said, "Some of the blokes down at the Police Station have been talking about it. There was a suggestion that you had acted unethically. I though I had better call you and tell you." 11 He said he felt extremely depressed, empty, unable to help himself or defend himself, he started to wonder whether he had done something wrong and whether there would be a complaint to the Bar Association. 12 Shortly afterwards he received a copy of the tape which he played to himself, his first reaction was one of devastation, he had never heard a barrister criticised so seriously, he was indignant, hurt and particularly devastated by the sarcasm, that is the sarcasm that he would not be able to look at himself in the mirror, and the pause before the word "gentleman". He felt down for the remainder of the committal, sleeping only about two hours per night if he was lucky, he lost weight, was withdrawn and had a constant headache. He said as time went by his most fundamental reaction was that he thought the broadcast was absolutely unfair and unbalanced, he felt unable to defend himself and wanted an immediate and unequivocal apology. He discussed the broadcast with his wife and noticed that the discussion upset her as well. 13 He was particularly upset by imputation (a), that he behaved shamefully in seeking to cross-examine the son of the deceased, because he regarded it as a slur on him and his reputation. He had worked hard to be a barrister and made sacrifices, and he found it utterly galling to be judged and condemned on a matter of professional ethics by a sports commentator. He was also upset by the suggestion that he was a heartless person as he always considered himself caring, has done pro-bono work at the Bar, and spent a lot of time speaking with his clients and their relatives seeking to allay their fears and explaining the possible outcomes. His solicitor demanded apologies from each defendant (exhibit G) and received replies refusing same (exhibit H). Those replies included an offer for the plaintiff to go on air to put his side of the story, but he didn't want a debate and he did not trust the second defendant; he wanted an apology. 14 His matter was listed for hearing but not reached. It subsequently was listed for hearing in September last year before Greg James J but as a result of various interlocutory applications was adjourned. 15 The plaintiff claimed that his feelings were upset and aggravated on that occasion by some of the remarks made by senior counsel then appearing for the defendants, particularly a statement that there was an obvious defence of truth to the imputation alleging that he was unfit to be a barrister, a suggestion that damages in the range of $300,000 were absurd, a suggestion that the plaintiff should be paying the defendants and other similar remarks referred to in the evidence. Subsequently when justification and contextual truth were pleaded to the imputation that he was unfit to be a barrister, he was flabbergasted that another set of lawyers could make such a suggestion and he was grossly offended. This was aggravated when at the commencement of the present hearing senior counsel now appearing for the defendants said that there was no suggestion in the broadcast that the plaintiff was not acting perfectly properly. 16 He said that he was not re-appointed captain of the football team in 1996 or 1997, but there was no evidence that this was in any way due to the broadcast. He also gave evidence of remarks made to him by an old friend, Steven Spackman, when they met in Balmain in about December 1997. Although the plaintiff's version of what was said to him at football training two days after the broadcast was not challenged, his version of what was said to him by Mr Spackman was, but Mr Spackman was not called as a witness and there was no explanation given for his non-appearance. In these circumstances I draw the inference that his evidence would not have assisted the plaintiff, and although I consider it probable that Mr Spackman did make some comment about the broadcast, I am not satisfied that it was in the form or to the effect claimed by the plaintiff. 17 The plaintiff agreed that prior to the separation from his wife there would have been periods of emotional distress, and it must also be taken into account that the plaintiff's insomnia, feeling down and withdrawn, and loss of weight could well have been due in part to the strain of the committal hearing, which on the plaintiff's own evidence was a very stressful hearing for the defence team; but I am satisfied that this was aggravated by his reaction to the broadcast itself. The plaintiff claims no economic loss as a result of the broadcast. 18 The plaintiff's ex-wife gave evidence that his reputation was as a hardworking, trustworthy, reliable barrister who generally got good results, and that he was a devoted and loving father to their children, had a good reputation as a sportsman and a general reputation as a generous, kind, fun-loving person who enjoyed life and who was looked on favourably by most people as always being there if someone needed help. She noticed that after the broadcast he was worried that all his hard work over the years to establish his reputation as a barrister would be affected, and that for about a month he was very stressed and reserved in his demeanour and worried most of the time. 19 Mr AJ Bellanto QC gave evidence of the plaintiff's reputation as a barrister which he described as very good, and said his reputation otherwise was as a caring father who took an interest in his children's activities, generally well liked and well respected. Other witnesses who knew him gave similar evidence of his reputation both in soccer circles and generally. None of them gave evidence that they thought less of him because of the broadcast. 20 The Rules of the New South Wales Bar Association relating to conduct, both at the time the applicant was admitted to the Bar and in January 1995, were admitted into evidence as was the article in the Daily Telegraph from which the second defendant had obtained his information. There was also evidence of the listening audience of 2UE at the relevant time and also the names and addresses of the other radio stations in rural New South Wales and interstate to which the broadcast was relayed, and the approximate audience range of those stations.

DEFENCE OF COMMENT 21 To make good a defence of comment, a defendant must show: (a) that the imputation is a comment and not a statement of fact, (b) that it relates to a matter of public interest (s 31), (c) that it is based on proper material for comment (s 30), and the defence will be defeated if the plaintiff shows that at the time the comment was made such comment did not represent the opinion or honest belief of the defendant (s 32(2)) or of its servant or agent (s 33(3)). 22 I refer to the "imputation" rather than to the "material giving rise to the imputation" because although there appears to have been some uncertainty, the issue has been resolved by the recent decision of the Court of Appeal in NSW Aboriginal Land Council v Perkins (1998) 45 NSWLR 340 following Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728 PC. In Perkins, Priestly JA at 345-6 quoted with approval what Clarke JA had said in Radio 2UE Pty Ltd v Parker (1992) 29 NSWLR 448 at 469: ". . . the defence of comment will arise for consideration by the jury only when it has found that the imputations for which the plaintiff contends (or ones substantially similar) were conveyed by the material published and that those imputations were defamatory. Once the defence of comment is raised the jury is required to consider whether the imputation it has found to arise was made by the defendant as an allegation of fact or as an expression of opinion, on facts stated, or sufficiently indicated, in the published matter. For that purpose it is not to the point that the plaintiff has pleaded his imputation as a statement of fact. The question is to be determined upon a consideration of the published material."

See also Meagher JA at 349, where his Honour pointed out that although the issue is whether the defamatory imputations constitute comment, in determining that question regard may be had to the material out of which the imputation arose. 23 Imputation (a), that the plaintiff behaved shamefully in seeking to cross-examine a young man who had seen his mother shot dead in front of him, is in my view clearly a comment. The imputation itself as found sets out facts namely that the plaintiff sought to cross-examine the young man in the circumstances indicated, and in relation to those facts expresses what I am satisfied the ordinary listener would understand as an opinion on that conduct, namely the opinion that he behaved shamefully. This becomes even clearer when the whole of the broadcast material is taken into account. The second defendant has set out what happened at the committal hearing, and then discusses the conduct of the plaintiff, which the jury have found conveyed the imputation that such conduct was "shameful" and the listener can judge whether he or she agrees that in the circumstances the plaintiff's conduct was "shameful". On behalf of the plaintiff it was submitted that the imputation could not be comment unless some part of the matter complained of was "congruent" with the imputation and expressed as a comment, and referred to David Syme & Co Ltd v Lloyd [1984] 3 NSWLR 346 at 355. I reject this submission; if correct it would mean that if a plaintiff could frame an imputation without using words from the publication or broadcast, the defence of comment would never be available. 24 As to imputation (d), that the plaintiff is a heartless person, that imputation is expressed as a bald statement of fact, and although the imputation does not have to be "expressed" as an opinion in order to constitute a comment, there is nothing in the material broadcast which leads me to conclude that this imputation is merely expressed as an opinion or comment. It does not relate to his conduct in the committal or as a barrister, but is in general terms, that he is a "heartless person". The material asserts, in the form of a rhetorical question, that there is "no compassion in his life" which I consider the ordinary reasonable listener would regard as a reference to his life in general, and there are no facts stated or identified relating to his life in general from which the listener can judge for himself whether he or she agrees with the imputation. In this regard, I consider the imputation bears some similarities to the matter complained of in O'Shaughnessy v Mirror Newspapers Ltd (1970) 125 CLR 166 at 174. 25 The second requirement is that the imputation relates to a matter of public interest. The administration of justice and the conduct of those who take part in it are matters of public interest: Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 217-8 and imputation (a) in my view clearly relates to the conduct of the plaintiff as a lawyer in the committal proceedings and so relates to a matter of public interest. 26 On the other hand, the second imputation as found does not confine itself to the plaintiff's conduct in relation to the conduct of the committal proceedings but asserts that he is a heartless person i.e. a heartless person generally. The imputation in these terms, as found by the jury, is consistent with the words actually used in the material broadcast such as the references to looking at himself in the mirror and no compassion "in your life" (my emphasis). I therefore find that imputation (d) did not relate to a matter of public interest. It is not correct, as Mr Rares SC submitted, to say that all the second defendant did was to set out the facts about the committal hearing and then say that in relation to his conduct of the case, the plaintiff's conduct was "shameful and heartless". The jury found two imputations proved; imputation (a) was related to his conduct at the committal, but imputation (d) was not so confined. 27 For the defence of comment, an imputation must be based on "proper material for comment", which includes facts which are matters of substantial truth where the comment represents an opinion which might reasonably be based on that material (s 30). Once again the defendant has difficulties in relation to imputation (d) because, accepting that the committal proceedings and the plaintiff's part therein were matters of substantial truth and the subject of a protected report under s 24 (proceedings in public in a court) the imputation that the plaintiff is a heartless person, i.e. a heartless person generally, is not an opinion which might reasonably be based on material relating only to the committal proceedings. There is no reasonable connection between his conduct as a barrister in the committal and the description of his general character as heartless, and so there was no proper material for comment in relation to the imputation that he was a heartless person generally, which was the imputation found by the jury: NSW Aboriginal Land Council v Perkins at 350. 28 In relation to imputation (a) the main submission on behalf of the plaintiff was that a comment that the plaintiff behaved shamefully in the circumstances could not reasonably be based on the material disclosed concerning the committal proceedings because the second defendant conceded in the broadcast that Mr Alan Sullivan QC had told him that lawyers are bound to act in the best interests of their clients; but I see no reason why, as a layman, he was bound to accept lawyers' standards, and consider that he was entitled to express the opinion that, irrespective of lawyers' standards, the conduct of the plaintiff was shameful. 29 Comments do not have to be correct, justified or reasonable provided they are honestly held and the second defendant was entitled to express the opinion (that the plaintiff's conduct was shameful) even though lawyers might regard his views as prejudiced, exaggerated or obstinate: Cawley v Australian Consolidated Press [1981] 1 NSWLR 225 at 235, Silkin v Beaverbrook Newspapers Ltd [1958] 1 WLR 743 at 747. 30 I therefore find that imputation (a) was comment on a matter of public interest and based on proper material for comment, but that imputation (d) was none of those, and the defence of comment accordingly fails in relation to imputation (d). 31 As to imputation (a) it was submitted on behalf of the plaintiff that the defence was defeated because the comment that the plaintiff acted shamefully in the conduct of the committal was not an opinion honestly held by the second defendant; and to establish this proposition (the onus of which lies on the plaintiff) a number of matters were relied on, including: (a) The second defendant admitted in the broadcast that he had been told by Mr Alan Sullivan QC that lawyers are paid to act in the best interests of their clients and had also been given an explanation by him as to why lawyers sometimes say the things they do, (b) Submissions made by defendants' counsel in his address to the jury to the effect that what the second defendant was trying to say was not that the plaintiff was a heartless person, but that he had had a heartless task to do, and that it was really the definition of "victim" in the Justices Act that was wrong, (c) As imputation (a) was not what the second defendant intended to say; and as he had not been called as a witness, I should find that imputation (a) as found did not represent his honest opinion and Jones v Dunkel (1959) 101 CLR 298 was referred to. 32 I have already considered the information received by the second defendant from Mr Sullivan QC, and for the reasons given, consider that the receipt of this information is not evidence that the opinion expressed was not honestly held by the second defendant. 33 Although it is true that for a defendant to say that he did not intend to convey the imputation that the jury found to have been conveyed is some evidence that he did not at the time hold that opinion, there is no evidence that such was the position in this case, and the principles of Jones and Dunkel mean that the failure of the second defendant to give evidence cannot make up a gap in the evidence and lead to a positive inference in favour of the party carrying the onus of proof on this issue. Moreover, the references to defence counsel's address to the jury overlook that counsel's addresses are not evidence; and in any event, the passages referred to confuse, possibly deliberately, the two imputations found by the jury - the references to being heartless, having to perform a heartless task etc, have nothing to do with imputation (a). 34 The plaintiff has therefore not shown that imputation (a) did not, at the time, represent the opinion of the second defendant and it follows that in relation to that imputation the defence of comment succeeds; and I turn to consider the question of damages in respect of imputation (d), that the plaintiff is a heartless person.

DAMAGES 35 In assessing damages it is necessary to have regard to the injury to the plaintiff's reputation, the hurt he himself has suffered, and the need for his vindication. The plaintiff also seeks aggravated damages on account of: (a) the refusal to apologise or retract whilst denying the matter was defamatory; (b) the patent hostility to the plaintiff of the broadcast; (c) the defendants' conduct of the proceedings; (d) the second defendant's knowledge of the falsity of the imputation; and (e) excessive publication outside New South Wales. 36 Whilst the publication of defamatory matter presupposes damages to the plaintiff's reputation and although there was evidence that some persons had spoken to the plaintiff in the days following the broadcast, none of them were called to give evidence that as a result of the broadcast they thought less of the plaintiff. Similarly none of the witnesses who gave evidence of his good character and reputation before the broadcast said that as a result of the broadcast they thought less of the plaintiff or that his reputation was in any way actually diminished. Indeed, none of them gave evidence of actually hearing the broadcast or having its contents reported to them. 37 There is no claim for special damages nor any claim that his practice as a barrister suffered in any way. 38 As to the hurt to the plaintiff's feelings it is necessary to bear in mind that the plaintiff has succeeded on only one of five alleged imputations and his damages must be referrable to that imputation. In describing his reaction to the broadcast, the plaintiff said he feared that there may be a complaint to the Bar Association, he was particularly upset by the imputation that he had behaved shamefully in seeking to cross-examine the witness, and by his perception that the second defendant had said he was unfit to be a barrister, and he was worried that all his hard work over the years to establish his reputation as a barrister would be affected; but the plaintiff has failed in relation to imputations (a) (b) and (c), which are the imputations alleged in relation to his conduct and standing as a barrister, and he is not entitled to damages in respect thereof. 39 Similarly, he said that he was indignant at the pause in the broadcast before the word "gentleman", but he has likewise failed on imputation (e), and similar considerations apply. 40 However, he also said, and I accept, that he was also hurt and upset by the suggestion that he was a "heartless person" and that imputation calls for significant damages, not only to compensate for the hurt and loss of reputation suffered, but also to vindicate the plaintiff. He was also hurt by the adjournment of the proceedings in September 1998 and by some of the remarks made at that time by counsel then appearing for the defendant, including that there was an obvious defence of truth available to the imputation alleging that he was unfit to be a barrister, and also by the pleading of defences of contextual truth and justification, subsequently abandoned. 41 As to aggravated damages, I take into account the conduct of the defence case, referred to above, but regarding the request for retraction and apology, the plaintiff sought retraction and apology for more than subsequent events have proved he was entitled to; and although publication of an apology may mitigate damages, a failure to do so does not increase the plaintiff's hurt, widen the area of publication or aggravate the plaintiff's injury: Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 66. Accordingly, I do not take the failure to apologise into account. 42 I have regard to the extensive coverage of the defendants' broadcast in the Sydney metropolitan area and country New South Wales, particularly in those centres where the plaintiff practised and he may have been known, but consider that even in those country areas he would not have been known outside legal professional circles and by people who had had dealings with him in the courts as clients, witnesses, police or relatives thereof. 43 I have regard to ss 45-47 of the Act and am satisfied that imputation (d) was not true or a matter of substantial truth, and it was published with a reckless indifference to its truth or falsity, no enquires having been made about his general character as opposed to his conduct of the committal hearing. Moreover the attack on the plaintiff was expressed in vituperative, sarcastic, mocking words and tone. 44 Taking all these matters into account, I assess the plaintiff's damages in respect of imputation (d) at $75,000. 45 Accordingly, in respect of imputation (a) I direct the entry of judgment for the defendant and in respect of imputation (d) I direct the entry of judgment for the plaintiff. I will hear argument on the plaintiff's claim for interest on the damages and on the question of costs.

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